Gender and Law in the Japanese Imperium

Introduction

Susan L. Burns

Beginning in the nineteenth century, law as practice, discourse, and ideology became a powerful means of reordering gender relations in modern nation-states and their colonies around the world. In France, the Civil Code of 1804 and the Napoleonic Code of 1810 ended a remarkable period of legal experimentation in gender equality that followed the revolution. As modern patriarchy was instantiated in law, there were new restrictions on access to birth control and increased penalties for abortion, while men who declined to marry their pregnant sexual partners or abandoned their families faced criminal prosecution.1 In the United States, even in the absence of a national code,

lawmakers at the level of individual states began to formulate new legal policies that, taken together, redefined gender roles within and outside the family. Marriage, which Republican discourse had regarded as an issue of private consent, became a public matter as states defined standards for marriage. Race, health, and intelligence were addressed by state statutes that sought to define “fitness” for marriage. If marriage became more difficult, so too did divorce, as states began to require legal evidence of “wrongdoing” in order to grant divorce.2 In Great Britain, too, new laws were enacted that sought to regulate gender relations. While women gained the right to initiate divorce and to retain custody of their children, acting upon these new statutes was difficult, since the concept of economic support lagged far behind.3 Beyond the family, new laws that aimed to regulate prostitution threatened to turn an occasional occupation into a stigmatizing label.4

These metropolitan developments were deeply implicated in the formation of the new colonial order of the nineteenth century. In European colonies in Asia and Africa, the “intimate” relations of colonizer and colonized became an important site where ideas about race, class, gender, and sexuality were articulated and contested. As works by Anne Laura Stoler and Durba Ghosh have demonstrated, the existence of mixed-race children in particular challenged the colonial relations of power that relied upon the visible “difference” of colonizer and colonized.5 At the same time, however, the nineteenth century conjugal ideal of female domesticity within monogamous marriage that was instantiated in metropolitan systems of family law made it possible for some

colonized women to begin to challenge indigenous forms of patriarchy. The diffusion of conjugal modernity did not, however, go uncontested as colonial authorities, nationalists, and traditional sources of authority all struggled to regulate marriage, families, and sexuality to their own advantage.6

This volume aims to put the situation in Japan and its colonies in dialogue with these global developments and with the scholarship that examines it. Through a series of case studies that engage with issues of reproductive and human rights, sexuality, cultural notions of femininity and masculinity, gendered agency, and the family, the contributors explore the impact of civil, administrative, and criminal laws upon the lives of both Japanese citizens and Japan’s colonial subjects. We argue for the importance of law and legal discourse: in Japan, as elsewhere in the modern world, it was a fundamental means of creating and regulating gendered subjects and social norms about sexuality and the family. In focusing on the Japanese “imperium,” our aim is to suggest the interconnectedness of the processes of legal reform in Japan proper and its colonies. Not only did metropolitan and colonial law unfold more or less synchronically, in both cases jurists and officials pursued multiple and conflicting goals. The problem of “custom,” for example, was an issue for Japanese jurists who sought to define new statutes for Japan by referencing European codes, but it was equally an issue in the colonial context as the “customary practices” of the native Taiwanese or Koreans were evaluated in reference to the new Japanese civil procedures that were themselves the product of a comparative process. At the same time, we also argue that the relationship between the emergent Japanese legal system and European and American legal regimes cannot be understood simply in terms of “reception” and “adaptation.” Instead, Japanese officials, jurists, legal scholars, politicians, and activists were part of a transnational flow of ideas about gender, the family, criminality, social order, and the role of law.

It is undeniable, however, that this transnational flow was always marked by the imperial relations of power that shaped relations between the West and Japan from the 1850s through the Occupation period. Legal reform began in the aftermath of the political revolution of 1868 that overthrew the Tokugawa shogunate. It was a pressing concern for the new government not only because of the need to restore social order, but also because the creation of a new judicial system was seen as necessary for the project of nation building and for renegotiating the unequal treaties of the 1850s. The latter, by granting extraterritoriality to the citizens of Western nation-states, authorized the creation of a system of consular courts that were a tangible symbol of Japan’s compromised sovereignty. However, Western governments refused to consider the renegotiation of the treaties, arguing that Japanese law was not in accord with principles of the “civilized” practices of modern nations. Legal reform thus always had ideological significance: it was used to signify Japan’s progress toward modernity.

Initially, the government simply issued edicts (fukoku and futatsu) to carry out fundamental reforms. The establishment of the household registration system, the abolition of the early modern status system, and the banning of a host of quotidienne practices newly viewed as “backward,” from mixed bathing and cross-dressing to the wearing of swords and the selling of amulets and charms, were addressed in this way. While the establishment of national codes was the goal, the process of legal reform proved challenging as individuals and groups within and outside of government debated the aims and expected outcomes of various legal frameworks.7 The result was that the creation of a modern legal system unfolded in a distinctly nonlinear manner. Between 1868 and 1908, four separate criminal codes were enacted, and even after the 1908 code went into effect, major reforms continued. Most notably, between 1928 and 1943, Japan experimented with jury trials in criminal cases.

The establishment of civil law was equally tumultuous. In 1890, the first civil code was finally promulgated, but it met with so much resistance from legal scholars and others who criticized its “slavish” reliance on the French civil code that the government was forced to withdraw it before it went into effect. The family law provisions were targeted for particular criticism: conservative critics argued that the civil code threatened to “destroy” traditional values such as loyalty and filial piety that supported both the family and the so-called “family-state.”8 It was not until eight years later that a substantially revised code finally went into effect in 1898. As Ueno Chizuko has argued, although the provisions in the 1898 code bolstering patriarchal authority were celebrated as “traditional,” in fact they represented the formation of a modern system of patriarchy that departed significantly from long-established practices. The new civil code rendered women legal minors even after marriage, with the result that they lost the right to manage property, to initiate

divorce, and to retain custody of their children.9

The fluidity of the codes and statutes notwithstanding, a working legal system of regional and appellate courts with the High Court of Review (Daishin’in) in Tokyo as its pinnacle was in place by 1873 and functioned without interruption from that point forward. These early courts were not merely an empty display of state authority but quickly became an important element of civic life. In 1875 and 1876, for example, regional courts heard more than 300,000 civil cases, and more than

100,000 cases on average were adjudicated each year until the end of the Meiji period. Beginning in the late 1910s, the number of cases rose again to well over 200,000 per year, before dropping dramatically in the 1930s.10 While more work needs to be done to understand the reasons behind such dramatic shifts in popular recourse to the courts, the numbers alone reveal that the new courts were an important site where Japanese citizens engaged directly with representatives of the modern state—its prosecutors and judges.

The project of legal reform in the metropole had implications as well for Japan’s expanding empire. In both Taiwan, colonized in 1895, and Korea, colonized in 1910, colonial officials, legal scholars, and jurists debated whether the civil and criminal codes of Japan proper could be

transferred intact to the colonies. At stake in the debate were the incompatible ideological requirements to distinguish “enlightened” Japanese colonialism from “oppressive” European colonialism while maintaining the claim of Japanese modernity in relation to less “civilized” Taiwanese and Koreans. As this suggests, the Japanese formulation of colonial law, no less than metropolitan law, was ordered by the discourse on civilization that privileged European political and social forms. The result was the establishment of a hybrid legal system in the Japanese colonies. Departing from the British and French policy of setting up separate courts for colonial subjects under the control of colonized elites, there was only one system of courts in the Japanese colonies. They were staffed by Japanese judges who adjudicated cases involving both Japanese and non-Japanese.11 At the same time, it was eventually concluded that laws had to be tailored to the specific social and cultural requirements of the colonized peoples. Under this policy, although the premise was that the Japanese criminal codes should be enforced in the colonies, the governor-generals of Japan and Korea were given the right to suspend those laws they regarded as inapplicable to colonial subjects and enact ordinances (seirei) specifically for the colonies under their control.12

In regard to civil law, until 1923, judgments were to be based upon custom, and even after the Japanese civil code was extended to the colonies following more than a decade of debate, matters of family law were excluded: marriage, divorce, succession, and inheritance were to continue to follow the customary practices of the Taiwanese and Koreans. However, as Marie Seong-hak Kim has argued in several articles, and Chen Chao-ju’s contribution to this volume demonstrates, “custom was less a sociological than a judicial artifact.”13 Not only did colonial officials conduct ethnological research that sought to create a stable body of knowledge about “Korean” or “Taiwanese” customs that ignored their real diversity, Japanese judges were ultimately given authority to make judgments based upon “custom.” The codification of custom in the colonies replicated a similar procedure used in Japan itself: in the 1870s in preparation for the drafting of the civil code, the Ministry of Justice had undertaken a similar research project within Japan, calling upon local officials to compile information about practices regarding marriage, divorce, and child custody.14

In the aftermath of Japan’s defeat in 1945, the occupation era ushered in another period of intense legal reform. Largely a product of American authorship, the postwar Japanese constitution of 1947 gave women the right to vote for the first time, and the U.S.-endorsed vision of gender equality led to changes in both the civil and criminal codes. Although the bulk of the prewar civil code was unchanged, the fifth and sixth sections that dealt with family law and inheritance were extensively revised based upon the new principle, articulated in article 1b, that “this code shall be interpreted on the basis of the dignity of the individual and the fundamental equality between the sexes.”15 Yet, these ideals notwithstanding, key elements of prewar family law were retained.16

The survival of the household registration system meant that women, in most cases, continue to be required to abandon their surnames and adopt those of their husbands. And while the revised code allows men to remarry immediately after divorce, women are required to wait six months and any child born within three hundred days of the divorce is considered to be a product of the former marriage, provisions that aimed to guarantee paternal rights to any children conceived during the marriage. Moreover, while inheritance laws no longer privileged sons over daughters, children born within marriage continued to be privileged over their “illegitimate” siblings, until a 1995 court decision struck down this provision of the postwar civil code.

The situation with criminal law was also complicated. While much of the 1907 code was initially retained, key policies were targeted for revision. The criminalization of adultery (the topic of Harald Fuess’ chapter) was abandoned, and although the crime of abortion statute remained on the books, the 1948 Eugenics Protection Law provided for the de facto legalization of abortion. Yet, the criminal code continued to be marked by gender asymmetry. The provisions regarding sexual violence are a case in point: the statutes on rape were written in such a way as to exclude the possibility of a male victim and to disallow the possibility of rape within marriage.17

As this outline history suggests, the relationship between gender and law is both complex and profound, but perhaps because of the powerful postwar myth of Japanese nonlitigiousness, the field of legal history has been largely moribund until quite recently. In Japan, legal historians have focused almost exclusively on struggles among officials, jurists, and academics, and on the legal debates that accompanied the framing of the civil and criminal statutes and institutional reforms. The cultural and social history of law has been almost ignored, a situation that partially explains the paucity of historical work on gender and law. Only in the late 1990s did that situation begin to change as a new generation of historians, many of them feminist in their orientation, published groundbreaking work. An important milestone was Fujime Yuki’s Sei no rekishigaku: Kōshō seido dataizai taisei kara baishun bōshihō yūsei hogohō e (The History of Sex: From the System of Legal Prostitution and Criminalized Abortion to the System of the Prevention of Prostitution Law

and the Eugenics Protection Law).18 In her comprehensive study of the regulation of sexuality in Japan from the nineteenth century to the postwar period, Fujime focuses on the powerful role of the state, arguing that by policing abortion and prostitution, it sought to control the reproductive lives of poor women. Fujime’s work sparked much new interest in law in relation to issues of reproduction, prostitution, labor, and marriage.19 Recently, a number of important works on gender and law have appeared in English, including Harald Fuess’ work on divorce, Tiana Norgren’s study of postwar legislation on abortion and contraception, Marnie Anderson’s work on women’s political rights in the Meiji period, and Mark D. West’s multiple works on law and everyday life in contemporary Japan.20

Taking inspiration from this new literature, the contributors to this volume adopt an explicitly revisionist perspective that aims to push both legal history and gender history in new directions. While the standard textbooks of modern Japanese history now incorporate issues of gender, they typically make mention of “milestone” laws such as the 1882 criminalization of abortion, the 1890 ban on female participation in political activities, the 1892 educational ordinance that created a separate female track, and the patriarchal provisions of the 1898 civil code and place these developments in a narrative of teleological design that is ordered by increasing state oppression and heroic efforts at resistance.21 In contrast, rather than regarding law as only a technology of state control, we see it as fluid and relational, subject to negotiation, interpretation, and contestation at every level of its formulation and deployment, and productive of new gendered subjectivities. To explore law as a contested set of discourses and practices, the chapters here utilize new kinds of sources, including court records, legal handbooks, and popular reportage, to greater contextualize law in cultural, political, and social terms. The result is a new, more complicated chronology that foregrounds the agency of the various actors who shaped the legal process, from judges who interpreted the statutes in flexible ways, to the ordinary people who as defendants and plaintiffs deployed laws and the legal process to their

advantage, to the journalists who through their reporting shaped the public understanding of modern legal culture. While discourse analysis is a fundamental methodological tool employed by all the authors in this volume, an emphasis on agency and practice defines many of these essays. We are interested in the material realm of social life that was shaped by institutions, policies, and individuals, as well as by discourse and regimes of representation.

The organization of the volume is thematic and, within this framework, chronological. The three themes addressed are: (1) prostitution, law, and human rights; (2) gender and criminality; and (3) colonial law and the family. But across these thematic frames, the essays explore other key issues, including the interplay between law as an international and national phenomenon, the tension between law as an ideological construct and law as practice, and the social, economic, and political imperatives that shaped legal efforts to regulate gender, sexuality, and the family.

Part I brings together two works that address the beginning and the end of Japan’s modern system of legalized prostitution. Douglas Howland’s chapter, “The Maria Luz Incident: Personal Rights and International Justice for Chinese Coolies and Japanese Prostitutes,” explores a

seminal moment in the history of modern prostitution. The Maria Luz was a Peruvian cargo ship that was transporting Chinese coolies to Peru when it put into Yokohama in 1871. When one of the Chinese ran away to seek asylum, his plight became an international incident. Japanese

officials subsequently freed the coolies on board the Maria Luz on the basis of the illegality of their contracts, but Peru’s legal representative quickly sued. He argued that indentured prostitution in Japan was a practice equivalent to the coolie “trade,” so there was no legal basis for Japanese actions. Ōe Taku (1847–1921), the judge who presided over the Maria Luz case, agreed that the two practices were similar violations of individual rights and that both represented a subversion of the justice demanded by international norms. In the wake of his decision in the Maria Luz case, Ōe issued the first Meiji era ruling intended to improve the condition of prostitutes in Japan. Howland argues that while the resulting changes may seem superficial, the modern prostitution system must be understood in the context of Japan’s positions on labor contracts in the age of indentured labor and on its desire to participate in international law. Conceptually, if not in practice, female prostitutes, no less than male coolies, were endowed with the right to control their own labor by entering into contracts, now subject to legal oversight by the modern state.

In “Disputing Rights: The Debate over Anti-Prostitution Legislation in 1950s Japan,” Sally Hastings also takes up prostitution as an issue of human rights and international law but in a different historical moment, the 1950s. In February 1946, in response to an American occupation order, the Japanese government abolished the laws that had supported the system of licensed prostitution since the late nineteenth century. This did not bring an end to prostitution; rather, what was termed “voluntary” prostitution flourished in both the former brothel districts and in new ones that sprang up to serve the hundreds of thousands of U.S. soldiers and civilian officials then in Japan. With the end of the Occupation era in 1952, prostitution became a pressing social and political issue as advocates for criminalization vied with those who called for a return to the prewar system. Hastings focuses on the role of the first generation of female Diet members who advocated for the criminalization of prostitution, which they characterized as a violation of women’s human rights even as they called for penalties for those who engaged in it, female prostitutes as well as their male clients. Coalitions of brothel owners, a prostitute’s union, and conservative politicians, however, also adopted the rhetoric of “rights,” championing the right of women as free agents to choose their own form of employment, while also positioning regulated prostitution as a social necessity that satisfied male sexual needs, controlled the spread of venereal disease, and offered protection to women. Hastings concludes that the 1956 law, which criminalized solicitation, procurement, and contracts for prostitution but not the act itself, was a “limited symbolic victory” that made it possible for the trade in sex to continue while depriving it of the state support that had allowed prostitution to be conceptualized as a legitimate form of female labor since the time of Ōe’s landmark decision.

The essays in Part II all address the issue of gender in relation to criminal and penal law. As recent work by scholars such as Christine Marran and William Johnston has illuminated, fascination and fear of female criminality was a cultural phenomenon throughout the prewar

period, as stories of “poison women” became front-page news and trial transcripts became best-sellers.22 The essays in this section seek to push the study of gender and criminality in new directions by looking beyond literary sources and sensational cases to explore how cultural conceptions of femininity and masculinity shaped the formulation and applications of laws and the processes of adjudication and punishment.

In “Gender in the Arena of the Courts: The Prosecution of Abortion and Infanticide in Early Meiji Japan,” Susan L. Burns traces the history of abortion law from the early modern period and analyzes trial records of abortion and infanticide cases from the 1870s and ’80s in order to intervene in the debate over the motives and the impact of the criminalization of abortion and infanticide in the modern period. Burns argues that the new laws and the social arena of the courts compelled a rethinking of individual agency in relation to reproductive choices

as defendants were required to articulate who had acted and why. In responding to these statements, judges were remarkably flexible in their judgments, with women receiving widely varying sentences for the same act. Generally, young women who acted outside of patriarchal authority (young working women who were sexually active) were treated harshly for ending a pregnancy but so too were their male sexual partners. In contrast, wives and daughters who represented themselves as deferring to husbands and fathers were treated more generously, but this could result in punishment for the men who were implicated. Burns suggests that while the statutes defined stiff penalties for reproductive crimes, the adjudication of cases suggests that judges were less concerned with promoting pronatalism than with regulating sexuality, morality, and patterns of familial authority.

Like Burns, Harald Fuess too argues that the ideological value of the statutes offers only a partial picture of how law functioned to regulate gender roles. In his essay, “Adultery and Gender Equality in Modern Japan, 1868–1948,” Fuess explores the legal status of adultery in the modern period. From 1868 until 1948, adultery was a criminal offense—but only in the case of a married woman who engaged in extramarital sexual relations. Adultery by a married man was not criminalized, even when the man maintained a concubine or fathered children outside of marriage. Similarly, within the civil code, adultery by a wife was grounds for a divorce, while that of a husband was not. Fuess explores the discussions and debates that surrounded this legal sexual double standard in light of European practice and the early modern Japanese legal tradition and notes that both provided justification for the gender inequality embodied in the adultery laws. By tracing these debates as well as the case law, Fuess argues that in practice jurists sought to miti-

gate the asymmetry of divorce laws by interpreting adultery by husbands as “grave cruelty,” thus allowing women, under the terms of the civil code, to divorce their adulterous husbands. Moreover, he notes that in discussion of the criminal provisions, the key concern of the courts

changed over time, from regulating the sexuality of wives to concern about containing male sexuality and enforcing monogamy. As a result, while the adultery law in the criminal code went unrevised, the number of prosecutions and convictions declined dramatically after 1912. Fuess

argues then that the postwar abolition of adultery penalties should be viewed less as an imposition by Occupation reformers and more as the expected outcome of the prewar legal process.

Like Burns and Fuess, Daniel Botsman too contextualizes modern laws in relation to both pre-Meiji practices and developments in Europe. In “Of Pity and Poison: Imprisoning Women in Modern Japan,” he traces the forms of punishment to which women were subjected in the period from the mid-eighteenth century to the 1930s. Botsman argues that while penal methods were transformed during this period, they were always gendered. In the early modern period, while men were beaten or banished, female criminals were often punished by confinement, either in jailhouses or in the brothel district of Yoshiwara, where they were forced to work as prostitutes. In the 1870s, as modern prisons were constructed, special facilities for women were established, and after 1900 a gender-specific discourse on female prisoners took form, reflecting a new concern for rehabilitation. Influenced by eugenics and class-based notions of femininity, prison officials debated how best to reform female prisoners so that they could become “future mothers of our country.” Then, in the 1920s and ’30s, the number of female prisoners began to decline dramatically, a development Botsman concludes may have been related to the medicalization of female criminality.

The discourses on femininity and female criminality are also at the heart of Darryl Flaherty’s essay. In “Burning Down the House: Gender and Jury in a Tokyo Courtroom, 1928,” Flaherty explores the trial of Yamafuji Kanko, a wife, mother, and small-business owner who was charged with arson. He argues that while Yamafuji’s crime was commonplace, her trial attracted the attention of the public, legal officials, intellectuals, and politicians, as well as the press, because Yamafuji was the first defendant to be judged by a jury during Japan’s brief experiment with jury trials between 1928 and 1943. Because women were excluded from jury service and male jurors were subject to age, tax, and residency restrictions, her case was adjudicated by twelve men who were representatives of Tokyo’s old and new middle classes. Flaherty argues that these jurors came to stand in for the (male) public, with the result that ideas about women, their place in society, and their potential for criminality came into play in Yamafuji’s trial. The prosecution called for jurors to ignore Yamafuji’s gender, even as it cast her as a bad mother and unchaste wife. In contrast, the defense made Yamafuji’s gender the focus of their case, portraying her as a loving mother, loyal wife, and filial daughter. Flaherty suggests that while casting Yamafuji as the vic-

tim ultimately may have aided in her acquittal, it also served to affirm theories of female weakness that allowed the patriarchal state to deny women political rights

As the essays by Burns, Fuess, Botsman, and Flaherty suggest, even beyond the realm of family law, conceptions of gender roles within the family and concerns about familial authority came into play in Japan’s new courts and prisons. The works by Chen, Brooks, and Matsutani focus explicitly on issues of the family while shifting our attention to the Japanese colonies of Korea and Taiwan. In the last decade and half, studies of colonial law have become a vibrant new field of interest among scholars of empire and colonialism.23 The essays in this volume put the Japanese case in dialogue with this literature and contribute to a new cross-cultural exploration of colonial governance, gender, and modernity. Like scholars working on other colonial sites, their work takes up the tensions that emerged as new legal definitions of modern familial relations clashed with “tradition” and “custom” and as the boundary between colonizer and colonized was challenged by sexual, conjugal, and parental relationships.

In her essay, “Sim-pua under the Colonial Gaze: Gender, ‘Old Customs,’ and the Law in Taiwan under Japanese Imperialism,” Chen Chao-ju examines tensions in Japanese colonial legal policy toward the widespread Taiwanese custom of sim-pua marriage, whereby a girl was adopted at a very young age and raised in the family of her intended husband and then married in her teens to that adoptive brother. Chen’s paper contextualizes colonial policy toward this practice within the

debate on whether the Japanese civil code should be extended to Taiwan. She notes that in the aftermath of the 1923 decision to continue to use customary law to rule on family matters, courts struggled to reconcile the “civilizing mission” that authorized Japanese colonial rule with the requirement to respect custom. However, while colonial courts tended to position themselves as liberators of victimized colonial women, they would not have been able to “rescue” the victims of custom without their action. Through the careful reading of cases, Chen explores how sim-pua, their natal families, and adoptive brothers/would-be husbands used the colonial courts to assert their agency.

Building upon Ann Stoler’s discussion of the tensions that emerged in relation to race and sexual intimacy in colonial societies, Barbara Brooks takes up the issues of mixed marriages and “hybrid” children through the examination of legal handbooks that were published in prewar Japan and Korea to guide public officials through the complications of the household registration system. The koseki, or household registration system, was divided into metropolitan (naichi) and colonial (gaichi) registers, and throughout the colonial period policing the divide between these two systems was a challenge for officials. The essay further explores why Japanese women so often appear to be at the sexual divide between colonizer and colonized, in contrast to the dynamics elucidated in European scholarship on gender and colonial culture. Marginal Japanese women flowed into Korea and northeast China to take up menial work, often in the sex trade. Rules regarding intermarriage between colonial and metropolitan subjects changed with time, but the trend was to deny metropolitan status to Japanese women who married colonial men. Over the course of the colonial period, not only most offspring of hybrid unions, but their mothers as well, could find themselves consigned to colonial status in the gaichi registers.

Matsutani Motokazu’s groundbreaking work takes up one of the most reviled of Japanese colonial policies. This, the so-called name-changing policy, has been widely seen as aimed at forcing Korean families to give up their native Korean-language surnames in favor of entirely Japanese

surnames in a harsh culmination of decades of assimilationist policies that included the Japanese-language education of Korean children and compulsory Korean worship at Shinto shrines. However, Matsutani carefully reviews the ordinances, their actual effects, and a new body of revisionist scholarship and argues that the policy actually aimed to unify Korean nuclear families, especially through the elevation and better integration of the wife/mother in family units. By undermining the patriarchal clan structure in Korea, the colonial state hoped to mobilize Korean families as socials units, and Korean women within those units, to fulfill wartime exigencies. Matsutani points out that, postcolonial nationalist accounts notwithstanding, some Korean women and men praised the ordinances because they viewed these laws as liberating

them from the oppressive patriarchal clans.

As these summaries suggest, these nine essays taken together contribute to the recent revitalization of interest in law as an object of research by alerting readers to new sources, new problems, and new methodologies. Japan’s courts continue to be a powerful social site where men and women not only embrace the potential of law to protect and define rights but also to contest the restrictions that laws have imposed. In 1992, for example, in what is known as the “Fukuoka Case,” a female employee won a groundbreaking judgment against a male colleague for sexual harassment in the workplace. This case and those that followed it eventually prompted the amendment of the Equal Employment Opportunity Act to specifically address instances of sexual harassment.24 However, legal challenges to the gender asymmetry created by law continue. Early in 2011, five Japanese citizens filed suit to change the legal requirement that couples share a surname, a law established well over a century ago.25 Notably, both these cases point to the ongoing interaction between international norms and national laws that the authors in this volume address. Japan’s sexual harassment law was modeled on those of the United States and Western Europe, and in 2009, the UN Convention on the Elimination of All Forms of Discrimination against Women urged the Japanese government to amend the code and drop the one-surname requirement as discriminatory.26 With developments such as these in mind, we look forward to further work, by historians, political scientists, sociologists, and others, that will elucidate the complicated and continuing role of law in mediating the relationship between states,

individuals, ideologies, and everyday life.

1. On law, the family, and gender in France, see Jacques Donzelot,

The Policing of Families (Baltimore: Johns Hopkins University Press, 1997); Suzanne Desan, The Family on Trial in Revolutionary France (Berkeley: University of California Press, 2004); and Kristen Childers, Fathers, Families, and the State in France, 1914–1945 (Ithaca, NY: Cornell University Press, 2003).

2. On the U.S. case, see Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985); Hendrik Hartog, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000); and Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2002). For an insightful study of the history of miscegenation laws in the United States, see Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2010).

3. For an interesting analysis of marriage and divorce laws that puts legal and literary discourse in dialogue, see Kelly Hager, Dickens and the Rise of Divorce (Burlington, VT: Ashgate, 2010).

4. Judith Walkowitz, Prostitution and Victorian Society: Women, Class, and the State (Cambridge: Cambridge University Press, 1982).

5. Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California Press, 2002); Durba Ghosh, Sex and the Family in Colonial India: The Making of Empire (Cambridge: Cambridge University Press, 2008).

6. See Rochona Majumdar, Marriage and Modernity: Family Values in Colonial Bengal (Durham, NC: Duke University Press, 2009); and Mytheli Sreeni-vas, Wives, Widows, and Concubines: The Conjugal Family Ideal in Colonial India (Bloomington: Indiana University Press, 2008).

7. For an overview of the reforms of the late nineteenth century, see Ryōsuke Ishii, Japanese Legislation in the Meiji Era, translated and adapted by William J. Chambliss (Tokyo: Pan-Pacific Press, 1958); and Wilhelm Röhl, ed., History of Law in Japan since 1868 (Leiden: Brill, 2005).

8. For a collection of sources on the debates surrounding the 1890 code, see Hoshino Tōru, ed., Minpōten ronsō shi (Nihon Hyōronsha, 1944).

9. Ueno Chizuko, “Modern Patriarchy and the Formation of the Japanese Nation State,” in Multicultural Japan: Paleolithic to Postmodern, ed. Donald Denoon et al. (Cambridge: Cambridge University Press, 2001), 213–233.

10. Hayashiya Reiji, “Meiji Shonen no minji soshō shin jukensū no kōsatsu,” in Meiji zenki no hō to saiban, ed. Hayashiya, Ishii Shirō, and Aoyama Yoshimitsu (Shinsensha, 2002), 93.

11. On colonial law in Korea, see Marie Seong-hak Kim, “Customary Law and Colonial Jurisprudence in Korea,” American Journal of Comparative Law 57, no. 1 (2009): 213–247; and Marie Seong-hak Kim, “Law and Custom under the Choson Dynasty and Colonial Korea,” Journal of Asian Studies

66, no. 4 (November 2007): 1067–1097. On colonial law in Taiwan, see Taysheng Wang, Legal Reform in Taiwan under Japanese Colonial Rule (1895–1945): The Reception of Western Law (Seattle: University of Washington Press, 2000).

12. Wang, Legal Reform in Taiwan under Japanese Colonial Rule, 47.

13. Kim, “Law and Custom under the Choson Dynasty and Colonial Korea,” 1070.

14. On the problem of custom and early Meiji statutes on the family, see Susan L. Burns, “Local Courts, National Laws, and the Problem of Patriarchy in Meiji Japan: Reading ‘Record of Civil Rulings’ from the Perspective of Gender History,” in Interdisciplinary Studies in the Taiwan Colonial Court Archive, ed. Wang Tay-Sheng (Taipei: Angle Publishing, 2009), 285–309.

15. Quoted in Ronald Frank, “The Civil Code,” in History of Law in Japan, 204.

16. On the postwar reform of family law, see Nishimura Nobuo, Sengo Nihon no kazokuhō no minshūka, 2 vols. (Kyoto: Hōritsu Bunkasha, 1978–1991).

17. Rape was defined narrowly as forcible intercourse involving a vagina and a penis, a definition that excluded many acts of sexual violence including anal and oral intercourse. The result was that instances of male-male sexual violence were not deemed rape. Forcible anal and oral intercourse

involving a woman were also excluded. These kinds of crime were treated under the obscenity statutes, which carried far lighter punishments. For a discussion of problems in Japan’s rape laws and international criticism, see Morikawa Yasutaka, “Kakuron: Gōkanzai no mondaiten,” Hōgaku seminā 43, no. 10 (October 1998): 29–32.

18. Fujime Yuki, Sei no rekishigaku: Koshō seido, dataizai taisei kara baishun boshihō, yusei hogohō taisei e (Fuji Shuppan, 1997).

19. See, for example, the works by Kanazu Hidemi and Ishikawa Shōko on the criminalization of abortion cited by Burns in Chapter 3, as well as Mitsunari Miho, Jendā no hikakuhō shigaku: Kindaihō chitsujo no saikentō (Suita: Osaka Daigaku Shuppankai, 2006); and Murakami Kazuhiro, Nihon kindai kekkonhō shiron (Kyoto: Hōritsu Bunkasha, 2003).

20. Harald Fuess, Divorce in Japan: Family, Gender, and the State (Stanford, CA: Stanford University Press, 2004); Tiana Norgren, Abortion before Birth Control: The Politics of Reproduction in Postwar Japan (Princeton, NJ: Princeton University Press, 2001); Marnie S. Anderson, A Place in Public: Women’s Rights in Meiji Japan (Cambridge, MA: Harvard University Asia Center, 2010); and Mark D. West, Law in Everyday Japan: Sex, Sumo, Suicide, and Statutes (Chicago: University of Chicago Press, 2005) and Lovesick Japan: Sex/Marriage/Romance/Law (Ithaca, NY: Cornell University Press, 2011). An important work on gender and law that predates the post-2000 “boom” is J. Mark Ramseyer, “Indentured Prostitution in Imperial Japan: Credible Commitment in the Commercial Sex Industry,” Journal of Law, Economics, and Organization 17, no. 1 (Spring 1991): 89–116.

21. See, for example, James L. McClain, Japan: A Modern History (New York: W. W. Norton and Company, 2002), 256–259; and Andrew Gordon, A History of Modern Japan: From Tokugawa Times to the Present, 2nd ed. (New York: Oxford University Press, 2003), 87–89.

22. William Johnston, Geisha, Harlot, Stranger, Star: A Woman, Sex, and Morality in Modern Japan (New York: Columbia University Press, 2004); Christine L. Marran, Poison Woman: Figures of Female Transgression in Modern Japanese Culture (Minneapolis: University of Minnesota Press, 2007).

23. In addition to the works cited in notes 7 and 8, see Richard L. Roberts, Litigants and Households: African Disputes and Colonial Courts in the French Soudan, 1858–1912 (Portsmouth, NH: Heinemann Educational Books, 2005); Elsbeth Locher-Scholten, Women and the Colonial State: Essays on Gender and Modernity in the Netherland Indies, 1900–1942 (Amsterdam: Amsterdam University Press, 2000); and Sally Engle, Colonizing Hawai‘i: The Cultural Power of Law (Princeton, NJ: Princeton University Press, 2000).

24. There is an extensive literature on the Fukuoka case and its aftermath. Huen’s overview article is useful: see Yuki P. Huen, “Workplace Sexual Harassment in Japan: A Review of Combating Measures Taken,” Asian Survey 47, no. 5 (September/October 2007): 811–827.

25. The surname suit was filed in January 2011. Information on the case is available on the website maintained by a group called the Association to Support the Separate Surname Suit (Bessei soshō o sasaeru kai) available at http://www.asahi-net.or.jp/~dv3m-ymsk/index.html (accessed on July 9, 2012).

26. Chika Shinohara and Christopher Uggen, “Sexual Harassment: The Emergence of Legal Consciousness in Japan and the U.S.,” Sociological Quarterly 50, no. 2 (2009): 201–234.